CITATION: The Queen v. Andre Taillefer, 2015 ONSC 2357

COURT FILE NO.: CR-12-101

DATE: 2015-05-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

ANDRE TAILLEFER

Defendant

E. Evans, for the Crown

G. Castle-Trudel, for the Defendant

REASONS FOR JUDGMENT ON A DANGEROUS OFFENDER APPLICATION

PELLETIER, J

Introduction

[1] On December 20, 2013, Andre Taillefer was found guilty of criminal harassment as against R.V., in relation to a series of letters sent from jail to Ms. R.V. by Mr. Taillefer in 2 separate spans of time, January to April 2008, and January to May 2012.

[2] The letters, though not strictly speaking of a threatening nature, caused Ms. R.V. to be harassed given the repetitive nature of the unwanted communications (104 letters in total) and the suggestive and at times explicit sexual nature of the letters, in circumstances where Ms. R.V. informed Mr. Taillerfer that she did not wish to receive any such letters from him.

[3] The sexual nature of the letters, together with Ms. R.V.’s knowledge of Mr. Taillefer’s conviction for entering the home on an elderly lady and raping her some 10 years before the events giving rise to the present proceedings, caused Ms. R.V. to reasonably fear for her safety in the event of Mr. Taillefer’s release.

[4] The present reasons for judgement are to be read in conjunction with the Court’s Reasons for judgement on the trial proper, December 20, 2013, annexed to these reasons.

[5] The prosecution, having obtained the consent of the Attorney General for that purpose, brings the present dangerous offender application seeking an indeterminate sentence on the basis of the statutory requirements of Part XXIV of the Criminal Code being met.

[6] Mr Taillefer opposes the application, seeking either a fixed sentence in relation to the offences for which he has been found guilty, or a long term offender designation with certain measures directed at managing the risks of re-offence if such a risk is determined by the Court to exist.

The law

[7] Counsel agree that the Criminal Code provisions that existed at the time of the commission of the offense, which pre-date the July 2nd, 2008 amendments, apply. I agree.

R. v. Bedard [2009] O.J. No. 3938 (O.C.A.)

[8] The statutory provisions under Part XXIV of the Criminal Code applicable in the present application are the following:

“752 “court” means the court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction;

“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,

and for which the offender may be sentenced or imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

752.1(1) Application for remand for assessment – Where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed on the offender, on application by the prosecution, the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court may, by order in writing remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts. The assessment is to be used as evidence in an application under section 753 or 753.1.

(2) Report - The person to whom the offender is remanded shall file a report of the assessment with the court not later than fifteen days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

753.1 Application for finding that an offender is a dangerous offender – The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied.

(a) that the offender for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraining; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

(2) Time for making application – An application under subsection (1) must be made before sentence is imposed on the offender unless

(a) before the imposition of sentence, the prosecution gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.

(5) If offender not found to be dangerous offender – If the court does not find an offender to be a dangerous offender.

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

(6) Victim evidence – Any evidence given during the hearing of an application made under subsection (1) by victim of an offence for which the offender was convicted is deemed also to have been given during any hearing under paragraph (5)(a) held with respect to the offender.

753.1 (1) Application for finding that an offender is a long-term offender – The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

(c)

(2) Substantial risk – The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(d)

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence.

(e)

(3) If offender found to be long-term offender – Subject to subsection (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

(b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

(f)

753.2(1) Long-term supervision – Subject to subsection (2), an offender who is required to be supervised by an order made under paragraph 753.1(3)(b) shall be supervised in accordance with the Corrections and Conditional Release Act when the offender has finished serving

(a) the sentence for the offence for which the offender has been convicted; and

(b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).”

[9] Proceedings under Part XXIV of the Criminal Code form part of the sentencing process. As such, the principles and objectives of sentencing including those found in sections 718 and 718.1 of the Criminal Code apply. R. v. Johnson 2003 SCC 46, [2003] SCJ No. 45.

[10] As a form of preventative justice, the dangerous offender sentence of indeterminate removal from society requires that the evidence at the hearing establishes the supremacy over all other sentencing objectives of the future protection of the public based on the likelihood of the commission of further serious personal injury offenses.

[11] This principle was reaffirmed in R. v. Johnson, supra, at paras. 19, 29, 30, 31 and 32:

“19. In R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, this Court affirmed that the primary purpose of the dangerous offender regime is the protection of the public: see also Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. (3d) 306 (Ont. H.C.), cited with approval in Lyons, supra, at p. 329. In Lyons, La Forest J. explained that preventive detention under the dangerous offender regime goes beyond what is justified on a “just deserts” rationale based on the reasoning that in a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing. La Forest J. confirmed, at p. 339, that the legislation was designed “to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration”.

29. In this case, the sentencing objective in question is public protection: see for example Lyons, supra, at p. 329, and Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 39, in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb”. Absent such a danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met.

30. In order for the sentencing sanctions available pursuant to the long-term offender provisions to reduce the threat associated with an offender who satisfies the dangerous offender criteria to an acceptable level, it must be possible for the same offender to satisfy both the dangerous offender criteria and the long-term offender criteria. To repeat, the three criteria that must be established on a long-term offender application are: (i) it must be appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence; (ii) there must be a substantial risk that the offender will reoffend; and (iii) there must be a reasonable possibility of eventual control of the risk in the community. On a dangerous offender application, the sentencing judge must be satisfied that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons, on the basis of a pattern of repetitive or persistent aggressive behaviour, brutal behaviour, or sexual misconduct described in s. 753(1)(a) and (b).

31. Almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions. In virtually every instance in which an offender is declared dangerous, it would have been appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence and there will be a substantial risk that the offender will reoffend. In a certain percentage of those cases there will also be a reasonable possibility of eventual control of the risk in the community. In those instances in which the offender currently constitutes a threat to the life, safety or physical or mental well-being of other persons yet there is a reasonable possibility of eventual control of the risk in the community, an offender will satisfy the criteria in both the dangerous offender and long-term offender provisions.

32. In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level. Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order for a maximum of ten years in accordance with the Corrections and Conditional Release Act. Supervision conditions under s. 134.1(2) of the Act may include those that are “reasonable and necessary in order to protect society”. The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses – and to do so without resort to the blunt instrument of indeterminate detention. If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention.”

[12] The prospects for control of the offender within the community must be based on evidence and represent more than wishful thinking. As stated in R. v. McCallum 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 (Ont. C.A.) at para. 47;

“Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.). In R. v. M. (J.S.) (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The court also noted that the French version of the section requires “une possibilité réelle”, or a “real possibility”, which may require an even higher degree of certainty in the evidence than the English version, a “reasonable possibility”.

See also R. V. Poutsoungas (1989) 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont.C.A.) at p. 3.

[13] Four factors are common to the determination of whether the offender and the likelihood of re-offending by the commission of serious personal injury offences meet the section 753(1) criterion:

1. Conduct tending to cause severe physical danger or psychological harm to others;

2. A pattern of behaviour of violence, brutality of sexual disinhibition;

3. That the pattern will likely continue;

4. That the pattern is substantially or pathologically intractable.

R. v. L. (T.P.) 1987 CanLII 25 (SCC), [1987] S.C.J. No. 62

[14] A “pattern of behaviour” requires only a general similarity in behaviour. Not every element of the pattern need be expressed in the index offense R. v. Lewis (1984) 12 C.C.C. (3d) 355 (Ont. C.A.) leave to appeal allowed (1985) 25 C.C.C. (3d) 288.

[15] More particularly, the pattern does not need to be based on prior offenses or conduct that would necessarily meet the standard of admissibility as similar act evidence. R. v. Harding (2005) 2005 Carswell Ont 561.

[16] As few as two occurrences can however constitute a pattern provided however that there is sufficient similarity. R. v. Langevin (1984) 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.).

[17] The passage of time between the occurrences, while relevant, does not prevent a finding that a pattern of behaviour exists. R. v. Milne (1982) 1982 CanLII 346 (BC CA), 66 C.C.C. (2d) 544 (B.C.C.A.).

[18] Conduct by the offender in the past, whether resulting in convictions or not, may properly be considered in a dangerous offender, however such conduct must, as an aggravating factor, be proved beyond a reasonable doubt. Section 724(3) (e) Criminal Code. R. v. Teskey (1996) 1996 CanLII 10360 (AB KB), 48 C.R. (4th) 267, (Alta Q.B.).

[19] As a dangerous offender application is a sentencing procedure, hearsay evidence is admissible. Section 723(5) Criminal Code, R. v. Jones 1994 CanLII 86 (SCC), [1994] 2 S.C.R. 299.

[20] With regards to managing the risk of the commission of further serious personal injury offenses, that an offender’s conduct may at some future point be manageable does not justify the immediate imposition of a long-term offender designation and sentence. The offender designated a dangerous offender benefits from a statutory review of his status after seven years of the designation and thereafter every two years. The Parole Board is well-suited to assess future manageability. Section 761(1) Criminal Code, R. v. L (T) 2008 Carswell Ont. 6973 (Ont. C.A.).

[21] In circumstances where the only means of managing the risk of the commission of further serious personal injury are akin to incarceration, a long-term offender designation is not appropriate. R. v. Hartling, supra.

[22] While the Crown bears the burden of proving beyond a reasonable doubt that the criterion in section 753 have been met, it does not bear the burden of proving beyond a reasonable doubt that there is no “reasonable possibility of eventual control of risk in the community” section 753.1(1)(c) Criminal Code.

[23] On the issue of the burden of proof under section 753.1, and whether the offender’s conduct can be controlled in the community, the British Columbia Court of Appeal concluded in R. v. Wormell 2005 BCCA 328, [2005] B.C.J. No. 1289:

“The task of the Court from beginning to end is to ask itself, “Am I satisfied that there is a reasonable possibility of eventual control of the risk in the community?” If the judge concludes that he or she is not so satisfied then the judge cannot designate the offender a long-term offender.

In my opinion, it is not right to approach this with burden of proof at the back of one’s mind. Burden of proof, whether it is proof beyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events.

While on a dangerous offender application the Crown must prove beyond a reasonable doubt past conduct of the accused, which it says, is relevant, there can be no burden of proof in the classic sense in the assessment of the future.”

[24] Both the assessment ordered under section 752.1 and the hearing of the application will take into consideration the offender’s past and present circumstances including testimony and records relating to the offender’s childhood, school performance, employment, relationships, behaviour while incarcerated, conduct while on probation or parole, performance in counselling or treatment, and both prior offences and untried prior offences. The circumstances of any particular case may also require the examination of other sources of information. Prior psychological assessments as well as those conducted under the section 752.1 remand will also be relevant to the risk of the commission of further serious personal injury offenses and the extent to which those risks can be managed in the community.

[25] Ultimately, the application is determined by an assessment of those risks and whether they can be managed if the offender is returned to the community.

[26] As observed in R. v. D.O.B. [2006] O.J. No. 771, an excellent analysis of the dangerous offender provisions relating to offenses of violence and consideration of sections 753(1)(a)(i) and 753(1)(a)(ii) can be found in R. v. Neve [1999] J.A. No. 753, a decision of the Alberta Court of Appeal.

[27] The following paragraphs are particularly instructive on the issues of identifying offenders contemplated by those Part XXIV provisions, threat assessment, consideration of past and future threat, the meaning of “pattern of behaviour”, and lack of restraint or intractability:

Concerning the identification of offenders deemed dangerous:

Viewed through the purpose lens, therefore, the Supreme Court found that the dangerous offender legislation is designed to protect public safety by targeting that relatively small number of recalcitrant offenders who, because of past behaviour, can reasonably be expected in the future to present an unacceptable risk to public safety. In turn, this legitimate societal concern for public safety justifies the special sentencing legislation for dangerous offenders – and all that this entails.”

On the definition of what constitutes a threat to the life, safety or well-being of others:

What then does s. 753(a) require on the threat issue? The core finding which the judge must make at this stage is whether the offender constitutes a threat to the life, safety or physical or mental well-being of other persons as defined under s. 753(a). Finding someone to be a threat is, in essence, a present determination that an offender will continue to be dangerous in the future, past the date on which he or she would ordinarily have been released from prison for their most recent crime. How is that threat to be determined? Whatever else may be placed on the threat scale, this much is clear. No threat can be found without proof of past behaviour which meets at least one of the three separate thresholds under ss. 753(a)(i), (ii) or (iii). If any one is met, then the judge is able to go on and determine whether the offender is, based on that evidence, a threat to the life, safety or well-being of others as described in s. 753(a). If none is met, then the judge cannot find the person to be a “threat” under s. 753(a).

While these two steps – whether the Crown has proven that the offender’s past conduct meets one of the specified thresholds and whether the offender constitutes a threat of the type contemplated – are linked, they are nevertheless quite separate. They are linked in the sense that the court cannot make a determination that an offender constitutes a threat in the manner specified in s. 753(a) except on the basis of evidence that meets at least one of the specified behaviour thresholds. However, they are separate in that even if the Crown proves that one of the thresholds has been met, the court must then go on to consider whether, in light of that evidence, the offender constitutes a threat to the life, safety, or physical or mental well-being of others.

Concerning the expressions “repetitive” and “persistent” behaviour:

Third, repetitive behaviour under s. 753(a)(i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two different bases. (Persistent in this context has been equated with repetitive: Yanoshewski, supra.) The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits a variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice.

As explained by Lambert J.A. in r. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 (QL) (C.A.) at para. 24, online, in reference to s. 753(a)(i) [reported 134 C.C.C. (3d) 323]:

In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.

The one qualification we would add to these comments is that it is not necessary that the past conduct have led to actual injury. Attempted serious violence and likely serious endangerment of life, safety or physical well-being or severe psychological harm may well be adequate.

Because the pattern of past behaviour must be repetitive (s. 753(a)(i) or persistent (s. 753(a)(ii)), evidence of one episode of violence or aggression will not suffice: Lyons, supra. This does not mean that it will always be necessary that the offender have a lengthy history of violence or aggression. To the contrary. Depending on the facts, a pattern sufficient to form the basis for predicting future behaviour which threatens others may be found on very few such incidents. (Indeed, under s. 753(a)(iii), which is not relevant here, there is no need for a pattern; one brutal attack may be sufficient.) Generally, however, in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be: Langevin, supra. We do not suggest that the offences must be of the same kind, that is, for example, a number of robberies. Similarity, as noted, can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims. This explains why the requirement for similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous: R. v. Jones (J.F.) (1993), 63 O.A.C. 317 (C.A.).

On the issue of intractable conduct, or lack of restraint:

Moving from the behavioural component of the pattern contemplated under s. 753(a)(i), we turn to the lack of restraint element. To qualify as part of the pattern, the impugned conduct must show that the offender has failed to restrain his or her behaviour in the past (and that this has led to death, injury or severe psychological damage or at least a likelihood of this harm) and that there exists a likelihood of causing death, injury or severe psychological damage through a failure to restrain that behaviour in the future. Likelihood, in this context, means more than simply a possibility. At the very least, it means more probable than not. (We note that in Lyons, supra, at 338, the Court used the “very likely” formulation when dealing with this issue, but in other cases, Jones, supra, and Currie, supra, it used the term “likelihood”.)

Under s. 753(a)(ii), the persistent aggressive conduct must show a substantial degree of indifference by the offender with respect to the reasonably foreseeable consequences to others of that behaviour. We agree with the sentencing judge that this section should be read as including a requirement that the Crown prove beyond a reasonable doubt that the evidence discloses a likelihood that the type of aggressive behaviour described will continue in the future.

There is another dimension to the offender’s conduct which merits special emphasis. The net effect of the threshold requirements under ss. 753(a)(i) and (ii) is that not only is the sentencing judge to consider whether the past conduct is likely to continue. To satisfy the pattern requirements, the conduct must also demonstrate a relatively high level of intractability. As La Forest J. confirmed in Lyons, supra, at 338:

Also explicit in one form or another in each subparagraph of [s. 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added.]

This reflects Parliament’s intention that not only must the offender have demonstrated a commitment to serious violence or endangerment in the past; the reasons for that behaviour should militate against any reasonable prospect for meaningful change in the future. It is this combination – violence and the likely continuation of that conduct – which, taken together, justify the finding that this offender will likely pose a threat in the future.

Given these various requirements under s. 753(a), it is easy to understand why the context in which an offender committed past criminal conduct will be relevant to this part of the analysis. Without understanding that context, it would not be possible for a judge to make an informed, reliable assessment on whether the offender’s past behaviour will be likely to lead to harm in the future. After all, whether something is likely to be repeated in the future is linked not only to what happened in the past but why it happened. This being so, it will be evident that if the analysis of past behaviour is undertaken without reference to the surrounding circumstances, this can lead to an undermining of a judge’s conclusion on two different levels – first, in terms of assessing which past conduct goes on the pattern scale; and second, in assessing the likelihood of that behaviour continuing in the future as a result of the offender’s failure to restrain or substantial indifference.”

In conclusion, the Court states:

In essence, the import of these requirements is that the evidence must show a pattern of repetitive violent behaviour or persistent aggressive behaviour by the offender, including the predicate offence, and from that behaviour, it must be possible to conclude that the offender represents a serious risk to others. As noted, the dangerous offender provisions are not designed to remove all recidivists from society. That is one of the reasons why Parliament has prescribed that before someone can be found to be a threat, the court must first find a pattern of conduct based on past behaviour which leads to the conclusion that serious harm will result to the public from the release of the offender into the community.”

Correctional Services Canada and the National Parole Board

[28] Correctional Services Canada (CSC) and the National Parole Board (NPB) administer sentences, inmate programs, and parole in relation to offenders receiving federal jail sentences of two years or more. As its mission statement, CSC seeks to contribute to the protection of society by actively encouraging and assisting offenders to become law-abiding citizens while exercising reasonable, safe, secure and humane control.

[29] Offenders entering the federal penal system undergo an initial assessment where their correctional plan is devised, according to their needs and the issues that have caused or contributed to their crimes. While in custody, and following their conditional release, various programs are made available to offenders in relation to substance abuse, family violence prevention, anger management, mental health issues, sexual offenses, educational pursuits, vocational training, and other factors considered relevant to the offender’s conduct and eventual re-integration into society.

[30] CSC recognizes that even offenders sentenced to indeterminate sentences under part XXIV of the Criminal Code may at some point be considered as suitable parole candidates and therefore offers programs to all inmates, regardless of the length of their sentence.

[31] Upon release from prison resulting from one form or other of parole, offenders are given an opportunity to benefit from community-based correctional programs, usually as a condition of their release from custody.

[32] While CSC administers sentences and various offender programs, the National Parole Board has exclusive jurisdiction to determine, based on various sources of information, including CSC recommendations whether an offender can be released from custody prior to the expiration of the entire jail term without posing an undue risk to society, and whether the protection of society can be achieved by the gradual re-integration into society by the offender. Paramount among the NPB’s considerations are the protection of society while engaging the least restrictive measures necessary.

[33] Documents relied upon address static considerations, that is factors that are historical and do not change such as victim impact, psychological/psychiatric reports, intake assessment and the offender’s correctional plan. Dynamic, or current and future considerations are also factored, including recent psychological and psychiatric reports addressing risk of reoffense, correctional plan progress reports, program reports, community assessment strategy and updated victim impact information.

[34] Based on this information and CSC’s recommendations, the NPB can grant or deny early release, impose release conditions, or revoke a conditional release.

[35] The NPB is involved in the determination of release conditions in the case of long term offenders as it is with any conditional release situation. Release into the community, pursuant to a long term supervision order made under section 752.1 of the Criminal Code results in the offender residing in a halfway house, either in the form of a community correctional centre (CCC) operated by CSC or a community based residential facility (CBRF) owned and operated by institutions such as the John Howard or Elizabeth Fry Society, or the Salvation Army. While in residency at a CCC or CBRF, the offender is subject to strict supervision and testing and must engage the services made available including rehabilitative programs.

Mr. Taillefer’s Offence History

[36] The following summary of the Mr. Taillerfer’s criminal record was provided by the Crown in its written submissions.

Date/offence

Facts

Sentence

1982-07-08

Break & enter

Break in to local school in Alexandria

Suspended sentence, 18 months’ probation

1982-10-21

3 x breach of probation

Breach of contact with individual with criminal record

30 days jail

1985-02-14

Theft over $200 x 3

Theft of tools

10 days per count consecutive 12 months’ probation

1988-06-23

Mischief x 1

Consuming alcohol at Ottawa Hotel, threw chair, got into a fight

$200 & 12 months’ probation

1989-03-16

1. Cause a disturbance

2. Take motor vehicle without consent

1- Attended Alexandria pizzeria 2:00 a.m. intoxicated, foul language, told to leave, scuffle with owner.

2- Different date saw truck outside with keys- drinking, took truck to go to party in Quebec-went through T intersection & hit fence, $4800 damage to truck.

1. 1 month jail

2. 3 months jail consecutive,

2 years’ probation.

1989-05-09

Paroled

1992-02-27

Theft

Theft of vehicle-saw vehicle unlocked, got in & drove off-caused damage of $949

30 days jail & 18 months’ probation

1993-03-04

1. Mischief

2. Mischief under $1000 x3

3. Mischief over $1000

4. Theft over $1000 x 2

Theft of garbage truck, drove same through cemetery, caused $30,000 damage to tombstones

1. 9 months jail

2. 3 months concurrent & concurrent

1995-09-07

1. Fail to comply with recognizance

2. Cause a disturbance

3. Possession of narcotic

Report to police with drugs on him. Belligerent to officer

1. 15 days jail

2. 45 days consecutive

3. 11 days consecutive

71 days total-(credit for 70 days’ time-served & then 12 months’ probation)

1996-02-22

1. Causing a disturbance

2. Fail to comply with recognizance x 2

3. Fail to comply with recognizance

4. Cause a disturbance

5. Possession of narcotic

Attends man’s house at 3:30 a.m. enters uninvited, demands beer, becomes aggressive when told to leave. Aggressive with police.

Different date-Attends woman’s residence late at night, banging on door & window, insisting he be let in – she refuses. Threatening comments to young boy.

Attends man’s residence drunk & belligerent, police called.

Different date found out after curfew, runs away from police.

1. 30 days jail

2. 30 days on each concurrent but consecutive

3-5 suspended sentence & 15 months’ probation.

1996-11-20

Mischief under(Quebec)

Facts unknown

$150

1996-12-05

Fail to comply with probation x 3

Alcohol breaches on different dates over several months, including buying beer on date released on probation.

60 days conditional jail consecutive

March 1997

Conditional sentence breach-new charges

Located outside of pool room, highly intoxicated-new charges-see below

Conditional sentence terminated- balance in custody

1997-06-04

s. 173

s. 264.1

As above-causes disturbance while intoxicated, smashes window, utters threat to police officer

5 days jail

15 days jail intermittent

1998-10-26

1. Assault with a weapon

2. Fail to comply with recognizance x 2

Victim-V.G..

Facts unknown

1. 30 days

2. Time served

2001-11-29

1. Sexual assault cause bodily harm

2. Assault

3. Sexual assault/break & enter F.S.

4. Assault M.S.-entered her home unwanted & assaulted her-sexual overtones

5. 5 years (above credit for 3 years’ time served) & s. 109

6. 6 months concurrent

2004-07-19

Carry concealed weapon

While in custody, caught with home- made bladed weapon

2 months consecutive to sentence

2008-04-08

Unlawfully in dwelling house

Complainant K.H.

Broke into her home-sexual overtones

9 months pre-sentence custody & 3 years’ probation

2010-01-06

Fail to comply with probation

Police receive call about man crouching under balcony. Police attend his residence & he is not there (curfew breach)

$300

2011-09-19

1. Uttering threats

2. Break & enter & commit

3. Unlawfully in dwelling house

4. Uttering threats

1-3 incidents involving H.U.- attending her house, bringing alcohol, returning & threatening when she rebuffed his attentions.

4. threats to male party over driving incident

1. 21 months jail

2. 21 months jail concurrent & s. 110/ 10 years

3 & 4 – 21 months concurrent

3 months pre-sentence custody

36 months’ probation

[37] Mr. Taillefer communicated by letter with Ms. R.V., on the first occasion in 2008, while he was awaiting disposition of the matter involving K.H.. He had been arrested in July 2007 and was released on April 8, 2008, having served 9 months in pre-trial custody.

[38] There were no further communications or deliberate contacts between Mr. Taillefer and Ms. R.V., until Mr. Taillefer’s arrest in 2011 in relation to the events involving Ms. H.U..

[39] On September 19, 2011, Mr. Taillefer received a sentence of 21 months fail concerning the charges involving Ms. H.U.. That sentence has been fully served. He remains in custody on the present charges.

The Section 752.1(1) c.c. Assessment

[40] Mr. Taillefer was the subject of a 60-day assessment order made January 16, 2014 in relation with the present application. The assessment was conducted by Dr. Jonathan Gray, a staff psychiatrist with the Royal Ottawa Mental Health Center. His report, exhibit 21 in these proceedings, sets out the results of interviews with Mr. Taillefer, analysis of historical data, bio-chemical testing, self-reported psychological questionnaires, and phallocentric testing.

[41] Consistent with his testimony at trial, Dr. Gray’s observations and conclusions, as found in the report, include the following references:

PAST PSYCHIATRIC TREATMENT AND ADMISSIONS:

Mr. Taillefer was admitted to the Royal Ottawa hospital under the services of Dr. Kunjukrishnan for a psychiatrist assessment following multiple charges of theft and mischief between February 1 and 18, 1993. During this admission, consultations were obtained from a neurologist, a neuropsychologist, and an addictions specialist. As with his 2011 admission to the Royal Ottawa Hospital described below, Mr. Taillefer was described as “bragging about his fighting ability” on admission, and engaged in “confrontational behaviours” during his stay. In a February 7, 1993 note by nursing staff, he was said to “go out of his way to antagonize other patients”. When his parents visited him on February 11, he “raised his fist to his father in a menacing way”. Nursing notes reported threats to co-patients, and when warned this was not acceptable, replied on February 16, 1993 that “he has 15 charges against him so he isn’t worried about one more”. In his discharge summary, Dr. Kunjukrishnan described Mr. Taillefer as showing “impulse control problems and was teasing co-patients. His tolerance of other patients was very minimal. However, to his credit, he did not show any violent behaviour”.

During that 1993 admission, addictionist Dr. Wilson was consulted for an opinion on “diagnosis and management”. Dr. Wilson, after examining Mr. Taillefer, concluded in his February 11, 1993 note that “Mr. Taillefer unfortunately has no motivation to attend treatment and likely has little capacity for insight learning due to head injury and sequelae (poor short-term memory). He does, however, seem to realize he needs to abstain as he behaves erratically when intoxicated. He says he will stop on his own. Patient does not want to attend AA or a treatment program. Because of his limited insight, his prognosis to abstain is extremely poor”.

Mr. Taillefer participated in programs at the Guelph Assessment and Treatment Centre during his 1993 incarceration for auto theft and mischief. Treatment summaries from groups he attended generally stated that he did not significantly benefit. He attended three sessions of the Communications Group between May and July of 1993 but was seen to be “uninterested” and to be “disrespectful” of other group members. He attended all but one session of the Anger and Aggression Group between July and August of 1993 before dropping out, but “evidenced a very negative attitude and strong anti-social tendencies”. He admitted to a high degree of anger, but ultimately “likely benefitted little from the sessions he attended before electing to drop out of the group”, according to group leader, John Memmott. Mr. Taillefer also attended 11 of 13 sessions of the Addictions Group between July and August 1993. According to the treatment summary, Mr. Taillefer “feels he can continue to use alcohol and ‘soft drugs’ without consequence”. He acknowledged that stopping his use of heroin “makes sense”, but believed he could do so on his own. Helen Calzonetti concluded that “without formal support and intervention in the community, it seems that Andre will continue to abuse one or more substances”. On a positive note, he was seen to be cooperative and forthcoming in individual sessions for addictions treatment.

On the “G.A.T.U. Behavioural Rating Scale”, he was noted to have little plans for his future after release.

Mr. Taillefer was subject to another court-ordered admission for fitness and criminal responsibility at the Brockville Psychiatric Hospital under psychiatrist Dr. N. McFeely between November 9 and December 4, 2000. He was ultimately found fit to stand trial and criminally responsible for his various charges which included forcible confinement and sexual assault. Dr. McFeely noted that Mr. Taillefer’s behaviour was generally appropriate during his admission and he “did not present with any management problem”. He further noted that “it was noteworthy that he was very open about talking about his past deeds and misdeeds and although he showed remorse for his alleged offences, he seemed more concerned about what would happen to him than about what would happen to the victim”.

Mr. Taillefer participated in the “Long Termers Sex Offenders Porgram”, at Kingston Pentitentiary between July 16 and November 15, 2002. This program consisted on three half-day group sessions per week and involved homework assignments between group times. In the treatment summary report, psychologist Dr. Peter Marquis, noted that Mr. Taillefer “successfully completed” the program. There was some concern regarding attendance, as he missed more than three sessions of the group without an excuse. He was also noted to be “one of the less active group members but participated when encouraged to”. He was noted to have little insight into the impact of the offence on his elderly victim. Dr. Marquis recommended that Mr. Taillfer continue in sexual offenders treatment by participating in the high-intensity sex offender program at the Regional Treatment Centre.

Asked in interview with me about his experience with Dr. Marquis’ program, he said he could not remember it.

A psychology report from Correctional Services dated February 6, 2006, revealed that Mr. Taillefer then refused on two occasions any further sexual offender treatment after completing the Long Termers Sexual Offenders Program. After unsuccessfully appealing for an end to his detention order, on February 7, 2006, he met with the program manager on February 13, 2006, and agreed to further sexual offender treatment.

Mr. Taillefer then went through the high-intensity sexual offender treatment program between February 9 and September 14, 2006. This group involved two-hour group sessions three times a week, and one individual session with a therapist on a weekly basis for one hour. According to program facilitators, Ms. Anita Cumbleton and Dr. Jan Looman, Mr. Taillefer, overall “made limited gains during the program”. They noted that Mr. Taillefer was very unrealistic regarding his ability to overcome challenges in the community when faced with similar difficulties, including substance abuse. Mr. Taillefer told facilitators that he would be able to control himself in the community by refraining from using substances. He was noted to “put minimal work into the majority of his assignments and contributed little to group discussions…he remained resistant to making changes to his homework when advised to do so”. Mr. Taillefer said on several occasions that he “is not going to refer to any of the material [from the program] once the program is complete and therefore sees no reason to ensure that [his relapse prevention] plan is accurate”.

On the positive side, Mr. Taillefer showed some improvements in terms of his phallometric test results between his pre-treatment and post-treatment scores. Prior to going through the high-intensity sexual offender program. Mr. Taillefer showed equal sexual arousal to rape scenarios, as to the consensual sexual scenarios. Post-treatment, his phallometric profile was considered to be “non-deviant” in that he responded to the normal control sexual scenarios but not as much to the rape scenarios. They note, however, that Mr. Taillefer “empathy remains an area in which he can improve”.

Mr. Taillefer said in interview with me in March 2014, that the program above was “alright”. He said “I had to stand up in front of the group and go through my offence”. Asked what he learned from the program, he replied, “never to assault an elderly lady again”. Mr. Taillefer told me he does not need any further sexual offender programs, as his problem is drinking.

Mr. Taillefer was sent to the Royal Ottawa Hospital between July 22 and August 16, 2011 for a court-ordered assessment for criminal responsibility and was under the services of psychiatrist Dr. Louis Soucy. According to notes from Dr. Soucy and the nursing staff, Mr. Taillefer was often threatening of others and ultimately was sent back to jail early as a result. On admission, Mr. Taillefer was quoted as saying he “has a short fuse” and a day later, nursing staff wrote that he “made frequent references to his willingness to be violent”. On July 24, 2011, a nursing note described how he “tends to be over-familiar with staff, flirting with female staff” and is “disinhibited”. He was also seen as a braggart, for example, on admission nursing staff write that he “brags about his fighting ability”, and on July 27, nursing staff write that he was “making loud grandiose statements about personal power and importance”. Dr. Soucy, in his discharge summary, wrote that he “it was apparent that he was more prone to bragging than having true grandiosity”. He assigned him diagnoses of alcohol abuse, polysubstance abuse, and “(?) Bipolar Illness (by history)”. Assigning a diagnosis himself, but has learned that a previous treatment provide made such a diagnosis.

While at the Royal Ottawa Hospital in that 2011 admission, Mr. Taillefer “complained to see an addictions counsellor but refused Alcoholics Anonymous” (July 30, 2011 note). Dr. Soucy wrote in his discharge summary that he “had no interest in treatment for his substance abuse, although he did have some insight that this was what precipitated the behaviour described in the charges”.

On the positive side, Mr. Taillefer attended one session each of the Spiritual Group and Anger Management. The facilitators of the former group described him as “pleasant and interacted well with other group members, adding positively to the group dynamic”. He was described by facilitators of the anger group as “attentive and engaged and expressed appreciation for the opportunity to participate”. Unfortunately, due to his early return to jail, he was unable to attend further groups.

The event precipitating his early discharge from hospital occurred on August 1, 2011. He accused a co-patient of stealing chocolate bards from him, and is quoted as saying, “I’m going to beat the crap out of that guy when I catch him!”. When told by staff that threats are not acceptable, he replied, “that’s not a threat-it’s a promise and when I make a promise I keep it”.

Mr. Taillefer was recommended for admission to the Secure Treatment Unit in Brockville, Ontario, following his 2011 convictions of break and entering, two counts of uttering threats, and unlawfully being in a dwelling place. His admission at the Secure Treatment Unit was between June 7 and June 25, 2012. Admitting psychiatrist, Dr. Diane Watson, diagnosed Mr. Taillefer with substance dependence (alcohol, cannabis) and intermittent explosive disorder, as well as antisocial personality disorder. Dr. Sanjiv Gulati, his attending psychiatrist, diagnosed him only with substance dependence, as well as antisocial personality disorder. Dr. Gulati wrote in his discharge summary dated June 22, 2012, that “at this point in time, there is little motivation to change and he is probably in the precontemplative phase, where he has probably been for the last several years. I am of the view that there is no clinical indication for Mr. Taillefer to stay at the Secure Treatment Unit, as there is no obvious major Axis I psychopathology evident. He can certainly address his alcohol misuse and seek counselling in the community, as well as the services available in jail…He has not presented with any symptoms comparable with depression or psychosis. His behaviour is mostly appropriate, other than at times he is observed to be confrontational.” Given the short length of time he was at the Secure Treatment Unit, he was unable to participate in any of their programs, including any sexual behaviours programs. When told he would be transferred out of the Secure Treatment Unit, Dr. Gulati wrote, “Mr. Taillefer presented as quite agitated and angry. He told me that a correctional officer had approached him today and informed him he no longer meets the criteria for an ongoing stay at the STU. He has been offered to be referred to the Ontario Correctional Institute (OCI) for further management of his aggression and violence. Mr. Taillefer expressed great dissatisfaction and feelings of resentment towards OCI. He said that centre caters to people who are ‘rapists and diddlers’. He kept making a fist and hitting his hand on the other hand to express his disappointment. He told me that he spent over 18 years of his life in jail and is not afraid of the consequences of violence. In fact, he mentioned that he is not at all afraid of banging someone’s head into a concrete wall and killing them instantly. He denied any current feelings of carrying out such actions”.

For further information regarding his attitude to and response to addictions treatment can be found in the Drug and Alcohol Abuse Section above.

CONCLUSIONS:

DSM-IV-TR DIAGNOSES:

Axis I : Alcohol dependence, in remission in controlled environment.

Opiate dependence, in remission.

Axis II: Antisocial personality disorder. Axis III: Serious head injury in 1990 from a motor vehicle accident affecting the right frontal lobe and having effects on behaviour, seizure disorder. Axis IV: Lifelong history of substance abuse, frequent conflicts with the law. Axis V: Global Assessment of Functioning currently: 55.

Based on my interview with Mr. Taillefer and my review of past records including psychiatric reports, there is no evidence to conclude that Mr. Taillefer suffers from a major mood disorder, anxiety disorder or a psychotic disorder. It is possible he was assigned a diagnosis of Bipolar Affective Disorder in the past, as his family doctor Dr. Kilmartin mentioned this in his notes. In my opinion, there is no evidence to support this diagnosis based on Mr. Taillefer’s description of past symptoms in interview with me, and a review of his past conduct in various hospitals and jails. Further, he has been the subject of several hospital admissions, lasting up to weeks at a time, for psychiatric assessments and none of the attending psychiatrists during these admissions diagnosed him with a mood disorder such as Bipolar Affective Disorder. Dr. Soucy wrote that he had Bipolar Disorder “by history”, but this merely signifies that someone else had made such a diagnosis in the past.

His psychiatric diagnoses are in the area of substances abuse and a personality disorder.

A personality disorder is a set of maladaptive character traits that begin in late adolescence and persist into adulthood. They cause difficulties in social and occupational functioning and are fixed and inflexible in nature. There is evidence to suggest Mr. Taillefer suffers from antisocial personality disorder (ASPD). According to the DSM-TR, antisocial personality disorder is a pervasive pattern of disregard for and violation of the rights of others occurring since age15, as indicated by at least three of seven criteria. Criteria that appear to be met with Mr. Taillefer include: failure to conform to social norms with respect to lawful behaviours, as indicated by several criminal convictions; impulsivity or failure to plan ahead; irritability and aggressiveness; reckless disregard for the safety of himself and others; and some lack of remorse given descriptions of this from past interviewers. Mr. Taillefer also meets the other necessary diagnostic criterion of evidence of the childhood diagnosis of conduct disorder prior to the age of 15, based on collateral interviews on his early behaviour and his own admission in interview.

RISK ASSESSMENT:

Assessment of risk to reoffend either sexually or violently is aided by the use of actuarial risk assessment tools which are based upon research linking certain factors with the probability of criminal recidivism.

Given the index offence involved sexually motivated behaviour, Mr. Taillefer was scored on the STATIC-2002-R which is well validated standardized actuarial risk assessment instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. Hanson and Thornton (2003) developed the original STATIS-2002 risk assessment instrument based upon follow-up studies from Canada, the United States and the United Kingdom with a total sample size of 2169 sexual offenders. This instrument has demonstrated moderate to large accuracy in the prediction of sexual violence and general recidivism. The STATIC-2002-R consists of 14 items and produces estimates of relative risk based upon the number of risk factors present in any one individual. The risk factors included in this risk assessment instrument are grouped into five domains: age, persistence of sexual offending, deviant sexual interests, relationship to victims, and general criminality.

The original STATIC-2002 was revised in 2009 to reflect more recent research on the effect of again on the oldest age category of sexual offenders. New age weights for scoring were incorporated into the STATIC-2002 to produce the STATIC-2002-R. When compared through studies by the authors of that risk assessment instrument, the STATIC-2002-R showed a slight increase in relative predictive accuracy compared to the original STATIC-2002.

On the STATIC-2002-R, Mr. Taillefer received a score of 7.

Mr. Taillefer received two points for having two prior sentencing dates for sexual offences. I should note that the 2008 conviction for unlawfully being in a dwelling house was coded as a sexual offence despite the fact that he was acquitted of the charge, stemming from the same set of events, of break and enter and commit sexual assault with a weapon. This is because of the similarity the set of circumstances in this offence bore to the 2000 sexual assault and other incidents involving breaking into the residences of older women and attempting to touch them sexually. This reasoning is described on p.18 in the STATIC-2002 coding manual. Mr. Taillefer also received one point for having a non-contact sexual offence with the criminal harassment conviction, and one point for having an unrelated victim. He received three points under the “general criminality” subsection for having prior involvement with the criminal justice system, more than fourteen prior sentencing occasions, community supervision violations, and a prior non-sexual violence sentencing occasion with the 1997 conviction of assault.

With the score of 7, Mr. Taillefer is in the fourth of five ascending risk categories with a “moderate-high” risk of sexual or violent reoffence. His risk of reoffence compared to a sample of 2398 sexual offenders would be at the 88.5 to 93.1 percentile. Thus, 6.9 to 11.5 percent of convicted Canadian Sexual offenders would be at higher risk of reoffence than Mr. Taillefer.

The Violence Risk Appraisal Guide (VRAG) is an actuarial instrument that is used to assist in risk prediction of violent offenders through identification of specific static or historical factors in the offender. Since its development in the early 1990s, approximately sixty replications around the world have shown its utility in studies, for the appraisal of violence risk among correctional and psychiatric populations. In 2013, the authors of that risk assessment instrument developed a revised version that was meant to replace both the VRAG and the Sex Offender Risk Appraisal Guide (SORAG) which was developed by the same authors. The authors’ 2013 study compared the performance of the VRAG with the revised instrument on a sample of 1261 offenders and found the same level of accuracy as the original VRAG. The VRAG-R however was developed to be easier to score and the authors recommended that the VRAG/SORAG combination be replaced with the new Violence Risk Appraisal Guide-Revised (VRAG-R).

On this risk assessment instrument, Mr. Taillefer received a score of +27. A breakdown of the subscores contributing to this total score is included in a separate appendix to this report. With the score of +27, Mr. Taillefer is in the highest of 9 ascending risk categories with a very high risk of reoffence. Offenders released into the community who had similar risk scores to Mr. Taillefer on this instrument had a probability of reoffending with a violent offence (including hands-on sexual offences) at a rate of 76% in five years and 90% in fifteen years. His score of +27 is higher than 91% of those offenders assessed with the instrument in the study population.

The Psychopathy Checklist Revised (PCL-R) was designed to compare the subject against the psychological construct of psychopathy which consists of interpersonal, affective, and antisocial lifestyle factors. Psychopathy has been shown to be associated with recidivism with violent or general offences and is a strong predictor of risk. Higher scores on the PCL-R also indicate poorer prognosis for treatment.

On the PCL-R, I assigned Mr. Taillefer a total score of 23. This total score is made up of his subscore in factor 1, which reflects interpersonal and affective items, and factor 2 which represents social deviance items (antisocial and lifestyle factors). I assigned Mr. Taillefer a score of 8 out of a possible 16 points on factor 1 and 13 out of a possible 20 points on factor 2. He received two additional points on the “promiscuous sexual behaviour” item that does not fall into either of the factor 1 or factor 2 subscales outlined above

Mr. Taillefer’s total score of 23 would place him in the 52.4 percentile compared to a sample of North American male offenders. His score is thus just above average for an incarcerated male offender. Referring specifically to subscales on the two factors, Mr. Taillefer was at the 48.7 percentile on factor 1 (interpersonal and affective items) and at the 58.9 percentile on factor 2 (lifestyle and antisocial factors) compared to North American male offenders. Mr. Taillefer’s total score is below the cut-off of 30 to meet the psychological construct of psychopathy, but is still quite elevated. In itself, a score below the cut-off for psychopathy would indicate a better prognosis for treatment. As I will describe in my conclusions, there are other factors in Mr. Taillefer’s case that make his prognosis for treatment poor despite the relatively average score on the PCL-R compared to other offenders.

I should note that Mr. Taillefer was previously scored on the PCL-R at the Regional Treatment Centre in Kinston by psychologist Dr. Jan Looman as described in his pre-treatment assessment of March 22, 2006. Although Dr. Looman does not provide his actual total score or a breakdown of item scoring, the percentile scores listed in his assessment correspond to a total score of 26, with 9 points on factor 1 and 13 points on factor 2. My assigned total score (23) is thus slightly lower than Dr. Looman’s but subscores on both factor 1 and factor 2 are similar to the results I derived.

REFERRAL ISSUES:

I understand that Section 753 of the Criminal Code outlines the following criteria that must be satisfied for a designation or a sexual offender:

a) That the offence for which the offender has been convicted is a serious personal injury offence and that the offender constitutes a threat to the life, safety or physical or mental wellbeing of other persons on the basis of evidence establishing: i. A pattern of repetitive behaviour by the offender of which he has been convicted forms a part showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour. ii. A pattern of persistent aggressive behaviour by the offender or which the offence for which he has been convicted forms a part showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour or iii. Any behaviour for the offender associated with the offence for which he has been convicted that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint or

b) That the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in Section 752 and the offender by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

Given that Mr. Taillefer has been convicted of a serious personal injury offence, the following issues arise:

1. Is there a pattern of repetitive behaviour by the offender for which Mr. Taillefer has been convicted forms a part, showing a failure to restrain his behaviour and likelihood of causing death or injury to other persons or inflicting severe psychological damage on another person through failure in the future to restrain his behaviour?

There is certainly a pattern of behaviour with Mr. Taillefer in the past of consuming an excessive amount of alcohol or recreational drugs, becoming disinhibited, and committing acts that cause physical or emotional damage to female victims.

The index offence differs slightly from this pattern as there is no evidence he was consuming alcohol at the time he wrote the dozens of sexually explicit letters to the non-consenting elderly female victim. The behaviour still falls into a pattern shared by many of his past offences of making unwanted sexual overtures, or taking steps towards making sexual overtures, towards elderly females and thereby causing the victims at least psychological distress and in one case physical injury. There is, in my opinion, sufficient evidence of such a pattern taking into account only behaviour for which he was convicted. The first conviction in 2001 was the most serious and involved physical injury along with the rape of an elderly woman. Less than a year after his release on that conviction, he committed acts that resulted in a conviction of unlawfully being in a dwelling house. The circumstances were similar in that he entered an elderly woman’s home without permission and at least verbally expressed affection unwanted by the victim. In her interview with police, it appears the victim in this case had experienced a fair amount of psychological distress over the incident. In 2011, he was convicted again for entering an older woman’s residence without permission, and caused psychological distress by threatening her when he was asked to leave. The predicate offence involved more unwanted sexual overtures, this time spanning over years, again involving an elderly woman who thereby felt afraid for her safety.

Further evidence of a pattern can be gleaned from other incidents for which Mr. Taillefer was either not convicted, or else the alleged victim did not want to press charges. In l999, it was alleged Mr. Taillefer broke into an older woman’s home asking for sex and was sitting nude on her bed. I understand the alleged victim did not want to pursue charges. In 1996, police noted a call from a woman asking if she has a right to defend herself with a baseball bat as she said Mr. Taillefer went into her bedroom after entering her home unannounced. He was cautioned by police but not charged.

Overall, evidence of a pattern is evident based only on behaviour for which he was convicted. The other incidents for which he was not convicted only add to the evidence of such a pattern.

2. Is there a pattern of persistent aggressive behaviour by Mr. Taillefer of which he offence for which he has been convicted forms a part showing a substantial degree of indifference on the part of Mr. Taillefer respecting the reasonably foreseeable consequences to other persons of his behaviour?

There is a very clear pattern with Mr. Taillefer coming into conflict with the law after consuming alcohol or using recreational drugs. Many of these convictions involved causing substantial psychological or physical harm to female victims. Given that it would have been reasonably foreseeable to Mr. Taillefer that consumption of alcohol or using drugs may lead to violence towards other people, it is my opinion that there is a “substantial degree” of indifference on his part in respecting the consequences of his consumption of drugs or alcohol. He has continued to drink excessively for most of his adult life even when facing possible re-incarceration for violating terms of probation. He has stated repeatedly to different parole officers that he is not interested in abstaining from alcohol and that he thinks it is acceptable to continue drinking.

Additional evidence of indifference includes Mr. Taillefer’s pattern of minimizing the damage on the victims and his responsibility after convictions for offences causing physical or psychological harm to his victims. This is evident in, for example, several reports of his perspective on his most serious sexual assault in l999 (e.g. as Mr. Taillefer related in an interview with police after his charges for the conviction, as described in Dr. McFeel’s psychiatric report, and as described in reports from the Regional Treatment Centre as having empathy deficits, suggesting he was relatively indifferent to the consequences of his actions.

Regarding the predicate offence, Mr. Taillefer admitted to writing additional sexually explicit letters to the victim even after he was asked to stop, showing indifference on his part to the effects of his actions.

3. Is any behaviour by Mr. Taillefer associated with an offence for which he has been convicted that is of such a brutal nature as to compel the conclusion at the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restrain?

As “brutality” is not a specific psychiatric concept and appears to involve a substantial degree of subjective legal judgement, I offer no psychiatric opinion regarding this particular criterion.

4. Is the offence for which Mr. Taillefer has been convicted a serious personal injury offence and has Mr. Taillefer by his conduct in any sexual manner including that involved in the commission of the offence shown a failure to control his sexual impulses and the likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses?

There is strong evidence Mr. Taillefer has difficulty controlling his sexual impulses and will likely continue to fail to control his sexual impulses in the future. He has a pattern of repeated unwanted sexual advances towards females usually while under the influence of alcohol or drugs. The predicate offence is particularly relevant to the view that he has difficulty controlling his sexual impulses as he composed the impugned letters while sober and not under the influence of substances. It appears that he has problems refraining from behaviour that would result in criminal charges even without the disinhibiting effects of drugs or alcohol.

The risk of Mr. Taillefer not controlling his sexual impulses is much higher if he were to use alcohol or drugs. Unfortunately, it is in my view highly unlikely that he will remain abstinent of drugs and alcohol if released into the community even though he contends he will not use alcohol or drugs again this time. I note that even during his most recent incarceration, he openly bragged about being a “brewmaster” and making his own alcoholic beverages.

I understand that if someone is designated a dangerous offender, the issue of whether he will be eventually released into the community is dependent on whether there is a substantial risk that the offender will reoffend and whether there is “reasonable possibility of eventual control of risk in the community.” I will answer these two issues in turn.

1. Is there a substantial risk that the offender will reoffend?

In my opinion, there is a very high risk that Mr. Taillefer will go on to commit further violent and possibly sexual offences in the future if released from custody. He is in the highest of nine risk categories when compared to the offenders on the VRAG-R with a risk of reoffence of 76% in five years and 90% in fifteen years. His score on the STATIC-2002-R, which compares Mr. Taillefer’s risk to a large population sample of Canadian convicted sexual offenders, his scare is in the “moderate high” risk category compared to an average sexual offender.

Mr. Taillefer has been incarcerated or on probation for most of his adult life. It is extremely unlikely he will remain offence-free for more than a short time if released from incarceration given his past record and, as will be described below, his poor prognosis for treatment.

2. Is there a reasonable possibility of eventual control of risk in the community?

As explained above, Mr. Taillefer is at a very high risk actuarially to commit another violent offence in the future. For most of his adult life, he has been either on probation or incarcerated for his criminal offences which include crimes of violence and sexual violence.

Mr. Taillefer has also not done very well under community supervision in the past. He has sixteen convictions for failure to comply with conditions during his adult life.

Although he has been relatively consistent in attending scheduled appointments with probation officers, he has frequently breached terms of his conditions mostly by using substances. This is of particular concern given that his consumption of alcohol or drugs would increase his risk of reoffence due to its disinhibiting effects. Most of his offences were committed under the influence of alcohol.

Even when incarcerated and hence not in the general community, Mr. Taillefer has committed acts that caused harm to others, or potentially could have caused harm. This includes carrying a concealed weapon while in the Kingston Penitentiary, making “brew” during his recent incarceration and significantly the predicate offences which involved sending dozens of sexually explicit letters from jail to an unwilling elderly female victim.

To reduce his future risk of offence, Mr. Taillefer would need to completely abstain from alcohol and other intoxicating substances and demonstrate progress from treatment and support in the community. Unfortunately, Mr. Taillefer has benefited little from the various treatment programs he has engaged in previously. For the most part, this appears to be due to his unwillingness to participate in treatment because he does not see the need. He has turned down several suggestions in the past to engage in addictions treatment and only participated in the High Intensity Sex Offender Program at Kingston Penitentiary when he realized that this may be beneficial to an earlier release. He was initially reluctant to participate in that program. Comments from group facilitators in many programs over the years (as described earlier in the report) have almost universally suggested that Mr. Taillefer received little benefit from the programs. One exception was a positive comment came from the final report of the High Intensity Sex Offender Program in 2006. Specifically, it noted that there is some improvement in his phallometric test results showing less response to rape stimuli. Despite that, he reoffended within a year of his release with a similar set of circumstances as the offence for which he was incarcerated at the Kingston Penitentiary. He was noted not to want to use any of the materials from the group once he was released from incarceration.

Psychiatrists in the past have commented that Mr. Taillefer’s head injury may impair his ability to fully benefit from treatment programs because of his cognitive deficits, and indeed this could be part of the reason he has not done well in past programs for addictions and sexual deviance.

Mr. Taillefer describes having a very supportive relationship currently with a woman in the community who does not use substances and would try to ensure Mr. Taillefer abstained as well. She said she would make sure he attended necessary recommended programs as directed by probation or a psychiatrist. In her interview with police, Lyne Dore also showed some awareness of Mr. Taillefer’s past criminal history. Although Ms. Dore may be well-meaning and supportive of Mr. Taillefer, their relationship has not been tested yet while out in the community for a significant amount of time. They have never lived together and are not in a sexual relationship. Further, I note that at least some of the letters written to the elderly victim of the predicate offences were sent after he said he had started the relationship with MS. Dore in 2010 or 2011. Hence, despite the protective factor of being in a relationship with Ms. Dore, he continued to offend. I note that Mr. Taillefer’s father was placed in the position of having to monitor Mr. Taillefer’s behaviour under conditions of probation for many years in the past. Like Ms. Dore, he was well-meaning and pro-social but was unable to control Mr. Taillefer’s substance abuse and violation of conditions of probation.

Other elements of Mr. Taillefer’s future plans also seem somewhat unrealistic. He hopes to live in a small town without any concrete plan of what he would do with his day. He felt he did not need to work, but may try to find odd jobs around the community.

Mr. Taillefer expressed to me in interview a strong willingness to abstain from alcohol and participate in any addictions programs as necessary. Mr. Taillefer has made such claims in the recent past to probation officers and yet has gone back to the use of alcohol. To be fair to Mr. Taillefer, his complete verbal disavow of the use of alcohol in the future is relatively new and only began around 2011. Prior to that, he did not consider alcohol to be a problem and was openly rejected suggestions from probation officers and addictionists that he abstain. It may be that he may redouble his efforts in the face of a potentially indeterminate sentence.

Aside from his more recent expressed willingness to engage in addictions programs and abstain from alcohol, there are some other positive factors in terms of Mr. Taillefer’s prognosis in the community. His psychopathy check list score, althou7gh elevated compared to the general population, is around average for incarcerated male offenders and is less than the cut-off of 30 to meet the psychological construct of psychopathy. At the age of 46, he is older than the age range of greatest risk of recidivism. Perhaps most importantly, Mr. Taillefer’s most serious crime of violence was his conviction in 2000. Since that time, his various other convictions have involved a similar pattern of targeting elderly and other females, but have not involve contact offences for which he was convicted. He had, in a couple of instances, opportunities to escalate and commit sexual offences against victims but did not do so. This may suggest that although his actuarial risk of reoffence is very high, the nature of his future offences may not be as serious as events leading to the 2000 conviction.

In my opinion, Mr. Taillefer would still continue to be at high risk of committing an offence that would cause psychological harm to others, despite all efforts to control this risk in the community. He would, in my opinion, meet criteria for the designation of dangerous offender.

If released into the community, control of Mr. Taillefer’s risk would be dependent on his abstaining from substances and participating in addictions maintenance program with regular contact with an addictionist and random urine screens for substances. He would benefit from involvement in a sexual behaviours program to work on relapse prevention strategies, but unfortunately he did not see this as an area of concern and thus would likely not benefit from this unless he changes his view.

Analysis

[42] Mr. Taillefer has committed a serious personal injury offence in the present case and remains a high risk of re-offending. He has failed to benefit from prior court intervention in any meaningful way. His performance while on probation has been poor. He has very little insight into the factors which lead him to commit offences repeatedly, and very little motivation to address those factors.

[43] During the assessment, Mr. Taillefer expressed a desire to abstain from alcohol or other substances, and engage in addiction programs and other rehabilitative measures. These assertions, as expressed by Dr. Gray, must be examined cautiously given Mr. Taillefer’s substance abuse and criminal history. Controlling Mr. Taillefer in the community would require strict external measures.

[44] I am generally of the same view as Dr. Gray on the issue of risk of re-offence, for the reasons cited.

[45] Mr. Taillefer has committed a series of offences involving elderly women ranging from being unlawfully in a dwelling to rape. He has established a pattern of repetitive behaviour as demonstrated by the convictions on his criminal record and conduct not reflected on his record. He has been arrested in the past, subjected to significant jail sentences, placed on probation and offered a myriad of treatment and counselling programs, both in relation to substance abuse and pro-social conduct. These measures have failed so far to dissuade Mr. Taillefer from continuing to impose his will upon others. He has been unable to restrain his behaviour, and indeed has at times seemed oblivious to the need to restrain himself.

[46] There appears therefore to be a likelihood that if released back into the community, Mr. Taillefer will inflict further damage, possibly physical though more likely psychological, to other persons, specifically elderly women. As such Mr. Taillefer meets the definition of dangerous offender within the meaning of s. 753.1(a)(i) c.c.

[47] I have however concluded that there is a reasonable possibility of eventual control in the community. I have arrived at this conclusion based on the cumulative effort of the four following considerations:

[48] Firstly, Mr. Taillefer has demonstrated a certain ability to restrain himself in spite of his persistence in antagonizing older women in his community.

[49] Though not remotely intended to minimize his conduct or the serious impact upon the victims, I would observe that Mr. Taillefer’s crimes against Ms. K.H. in 2008 and Ms. H.U. in 2011 had to do with unwanted presence and communications as opposed to direct physical contact.

[50] The predicate offence relates to unwanted contacts. It is, in my view, highly relevant and revealing that in the 4-year interval between the 2008 and 2012 series of letters to Ms. R.V., and while Mr. Taillefer was out of custody, and despite occasional and casual contacts with Ms. R.V., Mr. Taillefer made no attempts to carry out the fantasies described in his letters to Ms. R.V..

[51] No doubt Ms. R.V. was fearful of Mr. Taillefer. Mr. Taillefer however did nothing to accentuate those fears while out of custody between the two letter writing campaigns. With the exception of the particularly disturbing circumstances surrounding the rape of Ms. F.S. in 1998, for which Mr. Taillefer received an 8 year penitentiary sentence, there have been no offences or incidents involving actual physical contact and physical harm to elderly women.

[52] The risk which therefore needs to be managed is the risk of psychological harm resulting from Mr. Taillefer’s unwanted presence and/or communications with others. The weight of the evidence also tends to show that Mr. Taillefer was taking advantage of his acquaintance or familiarity with the victims.

[53] The offences in his criminal record involving elderly women were without exception committed in the immediate vicinity of Alexandria. It is reasonable to conclude that if prevented from residing in or attending the immediate area, the risk of re-offence would be reduced significantly, as Mr. Taillefer could not rely on his prior acquaintance together with certain pretexts for engaging further victims.

[54] Secondly, there are tangible reasons for believing that Mr. Taillefer’s sexual desire, as they relate to elderly women, are waning that will continue to do so.

[55] The phallocentric testing conducted by Dr. Gray’s staff included exposure to a series of potentially sexually provocative pictures involving women who appeared to be in their 70s or 80s. Mr. Taillefer was also shown two videotapes depicting consensual sexual activities involving a woman in her 70s or 80s. The results were an absence of any arousal by Mr. Taillefer in relation to either the photographs or videotapes.

[56] Dr. Gray states in his report that the use of these materials involving elderly subjects is not common practice, and that there are no standardized results. He advances the opinion that Mr. Taillefer’s non-response to the series of stimuli based on sexual activity by older women should not be taken as proof that Mr. Taillefer is not sexually aroused by elderly females.

[57] I have difficulty with that assertion by Dr. Gray. The phallocentric testing is conducted with a view to determining sexual interest or arousal in a subject when exposed to certain sexual stimuli, in the form of audiotapes, videotapes and photographs. Results are measured and interpreted.

[58] When exposed, during the same testing, to videotapes depicting normal sexual intercourse between adult males and females, Mr. Taillefer experienced a response described as 30% of a full erection. Scores approximating 5% of a full erection or more are considered clinically significant. The absence of any physical response therefore by Mr. Taillefer when exposed to sexually oriented materials involving the elderly cannot, in my view, be dismissed as inconclusive.

[59] Further, in relation to risk management in the community and evidence of a diminishing interest in sexual contacts with elderly women, Mr. Taillefer, as previously stated, has neither re-offended, in terms of physical assaulting behaviour, against elderly women since the 1998 episode involving Ms. F.S., nor made any attempts to pursue his sexual advances towards Ms. R.V., as expressed in the series of letters which form the subject matter of the present charges.

[60] Finally, and still within the context of a waning interest in sexual activity with the elderly, the evidence of Dr. Gray includes a reference to the generally accepted notion that both interest and abilities in sexual activities will decrease over time, and are said to diminish significantly as the subject approaching the age of 60 . Mr. Taillefer is 49.

[61] The third factor in arriving at the conclusion that the risks posed by having Mr. Taillefer eventually re-integrate the main stream of society can be managed relates to the very specific geographic confines of the present and past offences committed by Mr. Taillefer.

[62] Mr. Taillefer is well known in the Village of Alexandria. He is acquainted with a good number of elderly residents as a result of his family connections, including his uncle, a deacon at the local parish and a person involved in providing services to the elderly.

[63] Isolating Mr. Taillefer from Alexandria would serve not only to protect and reassure the elderly residents of that community, but also to significantly reduce if not eliminate the means by which Mr. Taillefer has allowed or arranged for contacts to arise between himself and his prior victims.

[64] Banishment orders are seldom resorted to in sentencing. As a means of temporary protection for a specific group, such measures are fairly common in judicial interim release orders. They are however occasionally included in probation orders and are the principal measure in s. 161 order relating to parks and playgrounds.

[65] I would conclude that a significant portion of the risk of re-offence in Mr. Taillefer’s case would be eliminated if he were not able to resort to committing offences in familiar confines involving persons with whom he has some familiarity.

[66] Finally, a fixed jail sentence with the availability of rehabilitative programs will afford Mr. Taillefer the opportunity to carry out his stated desire to engage such measures. His success in those programs will dictate the extent to which the restrictions placed upon him during the long term supervision portion of his sentence are necessary.

[67] At the very least, for the duration of the long term supervision period, Mr. Taillefer would be required to abstain from the consumption of alcohol, abide by a strict curfew and not associate or communicate with elderly women, at a fixed age, without their written, revocable consent. The involvement of further psychological and substance abuse counselling during the long term supervision portion of the sentence would similarly serve to reduce and manage the risks associated with Mr. Taillefer at large. Mr. Taillefer would finally be prohibited from entering Glengarry County.

[68] In arriving at this conclusion, I have borne in mind that a long term supervision order that is akin to incarceration is not to be employed as a substitute for a dangerous offender designation where the circumstances of the case warrant such a finding.

[69] I have, in the present matter, concluded however that the substantial risk posed by allowing Mr. Taillefer to re-enter society can be managed to acceptable level by the combined measures of a jail sentence and a long term supervision order.

Conclusion

[70] In the result, the Application to have Mr. Taillefer declared a dangerous offender is denied. Mr. Taillefer will be declared a Long Term Offender.

[71] The matter will be scheduled for counsel to make submissions on the actual disposition in relation to the appropriate range of sentence and duration of the Long Term Offender period, together with any corollary orders.

Pelletier, J.

Released: May 4, 2015

CITATION: The Queen v. Andre Taillefer, 2015 ONSC 2357

COURT FILE NO.: CR-12-101

DATE: 2015-05-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

Andre Taillefer

REASONS FOR JUDGMENT ON A DANGEROUS OFFENDER APPLICATION

Pelletier, J.

Released: May 4, 2015